Saturday, October 3, 2015

This is Part One in a series of posts discussing the trial of former Rutgers professor Anna Stubblefield. The series will be broken into four parts, with three parts each focusing on a different factor of the case. The fourth and final post will be an analysis of the impact that this case is likely to have on disability and civil rights, both legally and socially.

The disability community has been ablaze for the past few months over the case of Anna Stubblefield, a Rutgers professor accused of sexually assaulting DJ "DMan" Johnson, a nonspeaking man with cerebral palsy and hydrocephalus. DMan communicates via facilitated communication, which Anna taught him, and according to Anna and her lawyer, consented to sexual activity.

In a gross miscarriage of justice, Anna was convicted and is being held without bail until sentencing on November 9th.

The trial was centered on three main factors: intelligence, communication, and consent. The logical process to follow would be to focus on the third factor, consent, taking into account the second factor, communication. After all, it was a sexual assault case, and sexual assault and rape occur when someone has not consented to the sexual activity. Consent (obviously) needs to be communicated in some way, shape or form. The crux of the trial should have been "Did Dman have a way of communicating consent, and if so, did he consent to sexual activity with Anna?" Unfortunately, because of the actions of the judge and the prosecution, the crux of the trial became "Did Dman have the mental capacity to consent?" The answer they reached was "No."

So bearing all that in mind, let's start off this series with a discussion of intelligence.

The prosecution's argument was that DMan is "mentally defective", and does not have the mental capacity to consent to sexual activity. So let's talk about intellectual disability (formerly mental retardation).

First of all, intellectual disability is a fairly nebulous category that relies on IQ testing to determine. According to the DSM-5, the latest Diagnostic and Statistical Manual, the first criterion of intellectual disability, deficits in intellectual functions, can be satisfied by "both clinical assessment and individualized, standardized intelligence testing." The score of the tested person must be at least two standard deviations below the mean (average) score of the general population. This is meant to be a concrete, quantitative (based on numbers and statistics) way of identifying those with intellectual (and learning, though that's a separate set of issues) disabilities.

Doctors have claimed that DMan Johnson "has the mental capacity of an 18 month old" and is "severely mentally disabled". He has been declared legally incompetent and is under the guardianship of his mother and brother. Obviously, he has been tested, particularly in the school system, where the law mandates that reevaluation must at least be considered every three years. But unequivocally labeling someone intellectually disabled based on a test score is problematic at best.

It has been known for decades that IQ tests are racially and culturally biased. In the 1984 case of Larry Lucille P. vs. Riles P., the court found that “[o]n the average, black children score fifteen points, or one standard deviation, below white children on standardized intelligence tests.” It was further found that while the tests had been standardized on the basis of sex (so it was not biased against girls), no standardization on the base of race had ever been done, because black children were simply assumed to be less intelligent than white children. The court banned the use of IQ tests as a tool to place children in what was then called "EMR (educable mentally retarded) classes" in the state of California. As recently as 2009, researchers have tried to claim, using IQ scores as evidence, that people of color (particularly Hispanics) are naturally less intelligent than white people, suggesting that the essentially racist nature of IQ tests has never been corrected. DMan Johnson is a Black man, which means that IQ tests are automatically biased against him and he is more likely than a white person to have an IQ score in the intellectually disabled range. Strike one for DMan.

Let's zoom in and look at one of the most well known assessments of intelligence, the Stanford-Binet test. The most recent iteration of the test, the Stanford-Binet 5, was released in 2003, meaning that the test hasn't been updated in over a decade. Among its features, the SB5 has "colorful artwork, toys, and manipulatives". That's right, manipulatives. Which must be, as the name implies, physically manipulated. DMan has cerebral palsy, as I do. One of the primary characteristics of CP is fine and gross motor impairment, making it difficult to manipulate anything. I had fifteen to sixteen years of occupational therapy to address this very issue, and I still have difficulty with some fine motor tasks, such as brushing my teeth (I use an adaptive toothbrush to minimize gum swelling from improper brushing), nail clipping (ditto on the adaptive nail clippers), and handwriting (I was taught to type by an incredible OT at age eight and since then I have typed whenever possible). As someone with an IEP (Individualized Education Plan), I was also assessed every three years while in school, and I remember my frustration with the math portions of the test, as I couldn't type math and hand fatigue and pain contribute to my writing very slowly, providing an inaccurate picture of what level of math I could accomplish during a timed test. If you rely on manipulatives to tell you anything about a person with CP (besides the fact that they have fine motor impairment), you will not get an accurate score. Strike two for DMan.

The SB5 also features nonverbal content, contributing to a Nonverbal IQ. However, the test is not clear whether ALL content can be answered nonverbally, as would be the case for someone like DMan. The test "[h]as [an] equal balance of verbal and nonverbal content in all factors" suggesting that the verbal and nonverbal content are designed to be administered together, and that there is not an option for only nonverbal content to be measured. The description of the test also discusses "verbal and nonverbal subtests", suggesting that all subtests, verbal and nonverbal, must be administered. In addition, previous versions of the test focused much more on verbal content, and since DMan is in his thirties, it's reasonable to assume that he was diagnosed with an intellectual disability using a version of the test that focused majorly on verbal content, making it even more difficult for him to do well and obtain a high or even average IQ score. Strike three, DMan's out!

(Bonus strike: 18% of the SB5 is in the area of "visual-spatial processing". It is the third largest section. Visual processing disorders are a common co-morbid condition of cerebral palsy (and one of the lovely co-morbids that I've collected). The most recent CDC studies available say that 15% of children with CP have a visual impairment, which can include visual processing impairment. It is not clear whether or not DMan Johnson has a visual processing impairment, but there is a significant chance he does, making the visual-spatial processing section also difficult to borderline impossible. I have a visual processing disability. I have trouble judging distances, one of the reasons I don't drive. I can't see all that much in 3D. I have absolutely no sense of direction and I have been known to drive my wheelchair down steps because I can't distinguish them from the ground below. None of these factors influence my ability to do things typically thought of as "intelligent", like obtain a college degree, or to consent to sexual activity.)

Now that we've established that the methods used for determining intellectual disability are multiply skewed against DMan, the diagnosis of intellectual disability in itself seems to become suspect. It is not a question of whether a person, like DMan, is "truly" intellectually disabled, it is an assertion that the entire category of intellectual disability is fundamentally flawed, particularly when used to classify a Black man with cerebral palsy. Because of these concerns, it is my opinion as a disability studies scholar with a background in special education that the diagnosis of intellectual disability cannot be reliably used to prove DMan's competence and ability to consent. Yet that is exactly what the prosecution did in this case, drawing a direct connection between his supposed "mentally defective" state and his ability to consent to sexual activity.

If you're not suspicious of the prosecution yet, you should be.

In the next post, we'll talk about the second area of focus: communication. This is a big one with a lot to unpack, so stay tuned.